An Interesting Ethical Question

Prof. Richard Painter (Legal Ethics Forum) asks:

If a referee’s call is wrong, does the “winning” player have to say: “Sorry ref, you got it wrong; I did not have the ball; the other guy had it”? No, he does not (please let me know if there is a NFL rule on this that I am not aware of).

What are the obligations of a lawyer if a judge makes or is about to make a wrong call in litigation? See Rule 3.3. The answer turns on why the judge is getting it wrong.

And why is the role of a lawyer different from the role of a football player?

Here’s Model Rule of Professional Conduct 3.3:

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

(d) In an ex parte proceeding [i.e., a proceeding in which the other side is unrepresented], a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

I’m actually not sure that the rules are in practice that different between the NFL and the Model Rules, except as to the duty to disclose controlling law and as to ex parte proceedings, which aren’t really involved in the typical NFL referee call. But in any case, the question of what the right rule should be, and whether it should differ between lawyering and sports, is an interesting one. (There’s also the question of what the right ethical standard, even if not enforceable as a rule, should be, especially in team sports.)